While they’re at it, could they just decide that I don’t have to pay my mortgage any more? That would be great.
Is this Abolish Private Property bill being opposed by the tag team of McConnell & McCarthy?
Dabney will probably drop the hammer, unless they transferred the case to a Rapin Bill “judge” or an Odiousbama “judge”...
Populist nationalism bad.
Government nationalism good.
“the Emergency Rental Assistance program makes funding available to assist households that are unable to pay rent or utilities. Two separate programs have been established: ERA1 provides up to $25 billion under the Consolidated Appropriations Act, 2021, which was enacted on December 27, 2020, and ERA2 provides up to $21.55 billion under the American Rescue Plan Act of 2021, which was enacted on March 11, 2021.”
My computer says this is August 6, 2021.
It takes over seven months to get out checks to landlords?
Has the execution of property tax liens been placed on hold too by the CDC?
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALABAMA ASSOCIATION OF
REALTORS, et al.,
No. 20-cv-3377 (DLF)
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.
DEFENDANTS' OPPOSITION TO PLAINTIFFS' EMERGENCY MOTION
TO ENFORCE THE SUPREME COURT'S RULING AND
TO VACATE THE STAY PENDING APPEAL
After the eviction moratorium that was the subject of this litigation expired, the Centers for
Disease Control and Prevention ("CDC") determined that the deteriorating public health situation
necessitated a new invocation of its authority--and responsibility--to protect public health.
Although the factual circumstances have changed and CDC's new order differs from the prior
eviction moratorium by targeting only areas of high or substantial transmission, Plaintiffs have filed
what they style as a motion to "enforce the Supreme Court's ruling and to vacate the stay pending
appeal." ECF No. 67 ("Mot.") at 1 (capitalization modified). The motion should be denied, as it rests
on the incorrect premise that the Supreme Court has issued a "ruling" in Plaintiffs' favor.
In earlier proceedings in this case, this Court vacated the prior eviction moratorium but stayed
enforcement of its order pending appeal. On appellate review, the D.C. Circuit refused to lift the stay,
and the Supreme Court denied Plaintiffs' emergency application for vacatur. Plaintiffs emphasize that
Justice Kavanaugh indicated in his concurrence that he agreed with their position that CDC lacked
authority to issue a nationwide eviction moratorium, and that there were four Justices who dissented
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 2 of 9
from the denial of Plaintiffs' application for relief. Under D.C. Circuit precedent, however, the votes
of dissenting Justices may not be combined with the vote of a concurring Justice to establish a binding
decision. See United States v. Epps, 707 F.3d 337, 348 (D.C. Cir. 2013); King v. Palmer, 950 F.2d 771, 781
(D.C. Cir. 1991) (en banc). Unless and until the Supreme Court rules otherwise, the decision of the
D.C. Circuit motions panel that rejected Plaintiffs' position remains the law of the case, at least as to
the factors governing whether any adverse judgment should be stayed. See Ala. Ass'n of Realtors v.
HHS, No. 21-5093, 2021 WL 2221646 (D.C. Cir. 2021); see generally Petties v. District of Columbia, 227
F.3d 469, 472 (D.C. Cir. 2000) ("Under this court's practice, a decision of the motions panel is the law
of the case.").
Until the Supreme Court acts, this Court should follow the D.C. Circuit, not predictions about
what the Supreme Court may decide. Such predictions are particularly problematic here. In Plaintiffs'
prior Supreme Court application, they offered a variety of bases for vacating the stay, including "the
downward trend in COVID-19 cases," "the effectiveness of vaccines," and CDC's guidance that
"vaccinated individuals may dispense with masks and social distancing indoors." Pls.' Emergency
App. For Vacatur (June 3, 2021), No. 20A169, at 4, https://go.usa.gov/xFNup. The Justices who
dissented from the denial of Plaintiffs' application did not explain their reasoning and may have agreed
with Plaintiffs' contention that, under the circumstances then present, the eviction moratorium was
not "necessary" to prevent the spread of COVID-19, which is a requirement for the exercise of CDC's
authority under 42 U.S.C. 264.
Since that time, the trajectory of the pandemic has changed dramatically as a result of the
highly contagious Delta variant. The seven-day average of daily new cases is now 89,976--nearly a
seven-fold increase over the rate when the Supreme Court ruled on June 29. See CDC COVID Data
Tracker, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
2
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 3 of 9
State/Territory, https://go.usa.gov/xFRXv (last visited Aug. 6, 2021). And, based on mathematical
modeling, case trends will continue to increase over the coming weeks. See CDC COVID Data
Tracker, United States Forecasting, https://go.usa.gov/xFRFQ (last visited Aug. 6, 2021). New
evidence suggests that the Delta variant is more than twice as transmissible as the original strains of
SARS-CoV-2 circulating at the start of the pandemic; the Delta variant has demonstrated increased
levels of transmissibility among unvaccinated persons and might increase the risk of vaccine
breakthrough infections in the absence of other mitigation strategies. See CDC, About Variants of the
Virus that Causes COVID-19, https://go.usa.gov/xFRFG (last visited Aug. 6, 2021). Children
younger than age 12 are not yet eligible for vaccines.
CDC is thus once again recommending indoor masking for fully vaccinated individuals, see
CDC, Interim Public Health Recommendations for Fully Vaccinated People,
https://go.usa.gov/xFRX6 (last visited Aug. 6, 2021), as this Court has itself required, see D.D.C.
Standing Order 21-45, In re Reinstatement of Mask Requirement for All Individuals in Public and Non-Public
Areas of Courthouse (Jul. 30, 2021); businesses are delaying return-to-work orders, see, e.g., Lauren Hirsch,
Delays, More Masks and Mandatory Shots: Virus Surge Disrupts Office-Return Plans, N.Y. Times (July 23,
2021), https://nyti.ms/2VryVw5; and hospitalization rates in some states are approaching (if not
passing) their winter peaks, see CDC COVID Data Tracker, Prevalent Hospitalizations of Patients
with Confirmed COVID-19, https://go.usa.gov/xFnYg (last visited Aug. 6, 2021).
Faced with these rising case numbers, and instead of extending its previous "nationwide
eviction moratorium," Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2320, 2320 (2021) (Kavanaugh, J.,
concurring), CDC has issued a new moratorium that applies only in areas of substantial or high
transmission, thus exercising its authority to tailor a set of necessary actions to reduce the interstate
spread of communicable disease.
3
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 4 of 9
Under these circumstances, this Court should not strike down the new order on the basis of
twenty-four hours of emergency briefing--particularly when Plaintiffs have not even filed a pleading
asserting claims against the new, narrower CDC order.
BACKGROUND
A. Prior Proceedings In This Court And The D.C. Circuit
Plaintiffs challenged a nationwide CDC eviction moratorium that most recently was extended
through July 31, 2021. See 86 Fed. Reg. 34,010 (June 28, 2021). This Court vacated that moratorium
for lack of statutory authority but stayed the judgment pending appeal. In issuing the stay, this Court
concluded that Defendants had made a strong showing that they would be irreparably injured absent
a stay. See ECF Nos. 60, 61. The Court recognized Defendants' "strong interest in controlling the
spread of COVID-19 and protecting public health," and noted that CDC's Order was "supported by
observational data and analyses that estimate that as many as 433,000 cases of COVID-19 and
thousands of deaths could be attributed to the lifting of state-based eviction moratoria." ECF No. 61
at 8; see also id. (citing mathematical model that estimates that "anywhere from 1,000 to 100,000 excess
cases per million population could be attributable to evictions depending on the eviction and infection
rates"). The Court also held that any potential financial loss to landlords was "outweighed by the
[Defendants'] weighty interest in protecting the public." Id. at 9.
A unanimous panel of the D.C. Circuit refused to vacate this Court's stay. The motions panel
concluded that Defendants had a strong likelihood of success on the merits and that the equities
favored a stay of this Court's judgment. See Ala. Ass'n of Realtors, 2021 WL 2221646, at *1-4. The
motions panel concluded that Defendants had demonstrated "that lifting the national moratorium will
exacerbate the significant public health risks identified by CDC because, even with increased
vaccinations, COVID-19 continues to spread and infect persons, and new variants are emerging." Id.
at *3 (alterations and internal quotation marks omitted). By contrast, Plaintiffs had failed to show a
4
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 5 of 9
likelihood of irreparable injury. Id. at *3-4.
B. Prior Supreme Court Proceedings
The Supreme Court denied Plaintiffs' application to vacate the stay by a 5-4 vote. See Ala.
Ass'n of Realtors, 141 S. Ct. 2320. Concurring in the denial of the application, Justice Kavanaugh
indicated that he "agree[d] with the District Court and the applicants that the Centers for Disease
Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction
moratorium," but that he was voting to leave the stay in place "[b]ecause the CDC plans to end the
moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional
and more orderly distribution of the congressionally appropriated rental assistance funds." Id. at 2320-
21 (Kavanaugh, J., concurring). He stated that, in his view, "clear and specific congressional
authorization (via new legislation) would be necessary for the CDC to extend the moratorium past
July 31." Id. at 2321.
Four Justices voted to grant Plaintiffs' application but did not provide an explanation for their
votes. Likewise, the four Justices who voted to deny Plaintiffs' application did not provide their
reasoning.
C. The Moratorium At Issue Here
On August 3, CDC issued a new, more targeted eviction moratorium "in order to respond to
recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of
the Delta variant." See Temporary Halt in Residential Evictions in Communities with Substantial or
High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-
19 at 1, https://go.usa.gov/xF5yV. This new order applies only in areas of substantial or high disease
transmission, and it applies through October 3, 2021. CDC explained that the new order "is intended
to target specific areas of the country where cases are rapidly increasing, which likely would be
5
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 6 of 9
exacerbated by mass evictions." Id. at 1. As CDC explained, "[t]rends have dramatically worsened
since June 2021[,] and transmission is rapidly accelerating in the United States." Id. at 15. "A renewed
surge in cases in the United States began in early July 2021; case counts rose from 19,000 [new] cases
[per day] on July 1, 2021, to 103,000 cases on July 30, 2021," with cases expected to rise over the next
four weeks. Id. at 4.
CDC noted that the predominant "Delta variant has demonstrated increased levels of
transmissibility compared to other variants," and that "early evidence suggests that people who are
vaccinated and become infected with the Delta variant may transmit the virus to others." Id. at 5. It
further noted that emergency rental assistance had been slower to be distributed than hoped, with
"hundreds of thousands of applications for assistance . . . currently outstanding," and that additional
time would facilitate the distribution of additional assistance that could help keep people in their
homes, instead of congregate settings where the virus spreads easily. Id. at 8. Without a moratorium,
"a wave of evictions, on the order of hundreds of thousands, could occur in late summer and early
fall, exacerbating the spread of COVID-19 among the significant percentage of the population that
remains unvaccinated." Id. at 15.
ARGUMENT
Plaintiffs' motion provides no authority for this Court to enjoin CDC's August 3 order. The
D.C. Circuit motions panel addressed the issue of CDC's statutory authority to issue the prior
moratorium and concluded that Defendants had a strong likelihood of success on the merits; it further
concluded that the equities otherwise favored Defendants. Absent a contrary ruling from the Supreme
Court in a challenge to CDC's new moratorium, this Court should follow the D.C. Circuit motions
panel's determination that the moratorium should remain in effect. See Petties, 227 F.3d at 472.
Plaintiffs' motion rests on the incorrect premise that the Supreme Court issued an "order" or
6
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 7 of 9
"ruling" in their favor. It did not. The Supreme Court denied their application for relief. See Ala. Ass'n
of Realtors, 141 S. Ct. at 2320 ("The application to vacate stay presented to THE CHIEF JUSTICE and
by him referred to the Court is denied."). And a Supreme Court "order" or "ruling" in Plaintiffs'
favor cannot be created by cobbling together the votes of dissenting Justices with a concurrence. The
D.C. Circuit has held that, when a lower court applies Marks v. United States, 430 U.S. 188 (1977), to
discern the decision of a fractured Court, it should consider only the votes of the Justices who
supported the judgment. See Epps, 707 F.3d at 348 ("This court has interpreted Marks to mean that
the narrowest opinion `must represent a common denominator of the Court's reasoning; it must
embody a position implicitly approved by at least five Justices who support the judgment.'" (quoting King,
950 at 781) (second emphasis added)).
The D.C. Circuit's determination that this Court's judgment should be stayed, in contrast, was
reasoned, and it was issued by a unanimous three-judge panel. The court concluded that CDC had
made "a strong showing that it is likely to succeed on the merits" because the eviction moratorium
falls within the plain text of 42 U.S.C. 264(a), has been recognized by Congress as within CDC's
authority, is consistent with the text and structure of section 264's other provisions, and is consistent
with Congress's constitutional authority. Ala. Ass'n of Realtors, 2021 WL 2221646, at *1-3. The court
further found that the other equitable factors weighed in favor of staying this Court's order pending
appeal. Id. at *3-4. Although the motions panel indicated that its merits analysis would not bind the
merits panel, the motions panel's ruling is "preclusive for all matters decided expressly or by necessary
implication," Taylor v. F.D.I.C., 132 F.3d 753, 761 (D.C. Cir. 1997), which included the determination
that the moratorium should be left in place pending further review. See Petties, 227 F.3d at 472; cf.
Sherley v. Sebelius, 689 F.3d 776, 782-83 (D.C. Cir. 2012) (even preliminary decision can be law of the
case where it reflects "[a] fully considered appellate ruling on an issue of law" (internal quotation marks
7
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 8 of 9
omitted)). And "[d]istrict judges . . . are obligated to follow controlling precedent until either the D.C.
Circuit, sitting en banc, or the Supreme Court, overrules it." Vijender v. Wolf, No. 19-3337, 2020 WL
1935556, at *3 (D.D.C. Apr. 22, 2020) (alterations omitted) (quoting United States v. Torres, 115 F.3d
1033, 1036 (D.C. Cir. 1997)). Significantly, this Court "is not free to ignore binding circuit precedent
because of a possible inconsistency with an intervening decision of the Supreme Court." Nat'l Wildlife
Fed'n, Inc. v. U.S. Army Corps of Eng'rs, 314 F. Supp. 3d 126, 130 (D.D.C. 2018) (emphasis added).
"Unless and until the Court expressly abrogates [precedent,]" a district court "lacks authority to
conclude" that a more recent Supreme Court decision has, "by implication, overruled an earlier
precedent." Libertarian Nat'l Comm., Inc. v. Fed. Election Comm'n, 924 F.3d 533, 549 (D.C. Cir. 2019).
Finally, to the extent that this Court disagrees, Defendants respectfully request that this Court
enter an immediate administrative stay so that the Solicitor General may consider whether to seek
emergency relief from the D.C. Circuit or the Supreme Court. There is an exceptionally strong
equitable case for leaving the stay of this Court's judgment in place given recent trends in the
pandemic, and Plaintiffs will not be prejudiced by the short additional time that it would take for the
Supreme Court to interpret its own ruling. As the D.C. Circuit has observed, Plaintiffs "waited eleven
weeks before bringing their challenge to the [prior] moratorium," Ala. Ass'n of Realtors, 2021 WL
2221646, at *4, and every court to consider the question has concluded that the prior CDC eviction
moratorium did not cause landlords irreparable harm. See Defs.' Emergency Mot. for Stay Pending
Appeal, ECF No. 57, at 3 (collecting cases); see also Brown v. Azar, --- F.4th ----, 2021 WL 2944379
(11th Cir. July 14, 2021). Any injury to Plaintiffs caused by a temporary administrative stay is
outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial
transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the
highly contagious Delta variant.
8
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 9 of 9
CONCLUSION
The Court should deny Plaintiffs' motion.
Dated: August 6, 2021 Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
ERIC BECKENHAUER
Assistant Director, Federal Programs Branch
/s/ Steven A. Myers
STEVEN A. MYERS
Senior Trial Counsel (NY Bar No. 4823043)
JOHN ROBINSON
Trial Attorney (DC Bar No. 1044072)
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: (202) 305-8648
Fax: (202) 616-8470
E-mail: steven.a.myers@usdoj.gov
Counsel for Defendants
9
There are billions in rental assistance available which hasn’t been applied for. I believe it is the renter who has to apply for it, and why take the trouble to do so if they’re not going to get evicted no matter what? So turn it around. Let the property owners apply for the money. It’s really for them anyway and they will be willing to take the trouble to apply for it.
Willful disregard for the law is no longer punishable.
C’mon Man!
I will die of Covid if my landlord evicts me!
Are you eligible for vaccination?
No, I already got the $100.
Are your children going to school?
Yes, just for the free meals, it’s summer.
How about during the school year?
Every day that they aren’t sick.
How many times have you used your SNAP card since you owed back rent?
Quite a few times!
More than ten times?
Yes
I think Kavanaugh made it somewhat clear that he was voting to prevent immediate eviction Armageddon by giving Congress a month to do something. This rests squarely on SanFranNan’s shoulders. She was too busy trying to nail Trump a third time with her sham of a commission.
I don’t want to pay car insurance. Can the CDC fix that?
And my cat wants free food. Get on the ball, CDC fuhrer.
I suspect that the reason the Biden admin continued the rent moratorium (knowing it would be ruled unconstitutional) is to shift the “blame” from their radial base. This way, they can say “We tried but the courts would not let us.”
There’s thousands of jobs out there.
All pride is lost with your hand out.
Hard work is what built America.
As a senior that has worked many,many
jobs, (picked walnuts, mowed grass,
delivered news papers, hung drywall,
dug potatoes, trussed hundreds of
turkeys, raced snowmobiles, owned
and operated a restaurant, went to
school and earned a Masters in
Mechanical Engineering), there was
one thing first and foremost. That
was how to better my current situation.
Our countries’ drive is nonexistent
with it’s people. Most personal pride
and honor is lost.
Reply by plaintiffs ...
https://storage.courtlistener.com/recap/gov.uscourts.dcd.224305/gov.uscourts.dcd.224305.71.0.pdf
Hearing scheduled for 10 am Monday.